A Hollow Victory

I spent a good part of the month of April and early May advocating for the defeat of the then proposed, North Carolina Marriage Amendment, or Amendment 1 as it was more popularly known. That advocacy fell upon deaf ears as the state voting pool by about a 2/3 to 1/3 majority decided to embed permanently into the state constitution the ability to discriminate against a group of American citizens. In summary in the state of North Carolina is it constitutionally codified that marriage is strictly between one man and one woman and that is the only recognized civil union that will be recognized by the state. Notice with their ambiguous language in the two page amendment has managed to both codify discrimination in terms of the word marriage AND they managed to solidify state sanctioned discrimination even further by wrapping marriage in the ill-defined catch phrase “civil union”. In one fell swoop the state brought any union between two people that does not fall into this category into the world of contractual law, which the blood relatives will be able to dispute with as much authority as the recipient of benefits by contract.

Now that I have summarized the ill-effects at the state level, lets take a look at the federal. In 1996, in an attempt to demonstrate his moderate position in order to solidify a base among voters and politicians, then President Bill Clinton signed into law the Defense of Marriage Act, essentially codifying within federal law the inability for any couple beside that between a man and a woman to receive any level of federal benefits, regardless of the laws of the state in which they reside. Again, what this did is stop a same-sex couple who may be “legally” married in the eyes of the law (as is possible in eight states right now) from receiving federal level benefits. Denigrating and diminishing the one of the major reasons behind being married (or civally unioned), the ability to plan together as a family the future of that family, unless of course you fall into the “biblical” definition of a marriage which is that between a man and woman.

The 1st U.S. Circuit Court of Appeals this week made a pretty significant determination to the constitutionality of the act, yet in my mind it rings as a hollow victory. In their DOMA Ruling they determined that the act was indeed unconstitutional:

In writing the appellate court’s decision, Judge Michael Boudin noted the unprecedented and unconstitutional attempt by Congress “to put a thumb on the scales and influence a state’s decision as to how to shape its own marriage laws.”

Essentially, what this three member judicial panel decided was that marriage is a state issue and that is where it should be decided, not in an act approved by the federal government. One of the reasons this is a bit of a hollow victory in my mind is:

The 1st Circuit said its ruling would not be enforced until the Supreme Court decides the case, meaning that same-sex married couples will not be eligible to receive the economic benefits denied by the law until the high court rules.

Another reason is the ruling would only have applied to:

states within the circuit – Massachusetts, Rhode Island, Maine and New Hampshire – and Puerto Rico. Only the Supreme Court has the final say in deciding whether a law passed by Congress is unconstitutional.

So, in making this determination, the appellate court has passed the buck on to the Supreme Court to determine the constitutionality of the act, and since it is a Circuit Court they only have jurisdiction of the previously mentioned states allowing the other Circuits the ability to invalidate their findings within those districts. So while it is very interesting to have the three judges rule unanimously, they are 2 Republican appointees and 1 Democratic, it has not given any further headway to dissolution of a law, at the federal level, that allows a targeted group of citizens to be discriminated against. Currently, there is not a petition to decide DOMA and its constitutionality before the USSC and until there is one and they decide the merits of the act the USSC cannot do anything about it. The USSC cannot decide upon its own without being petitioned by a party the constitutional veracity of the law, if they were able to do so, they would be in violation of the the law themselves because they are not “law maker”, they provide the interpretation of the the Founding Father’s intent with regards to the Constitution and the laws of the land. A pretty vicious cycle.

Should it pass, the Respect of Marriage Act or ROMA could possibly be on as shaky ground as is DOMA from a Constitutional standpoint. In a nutshell ROMA would repeal DOMA and provide for the requirement for states to recognize between them a legal marriage or union, regardless of the law or constitution of the state. So, if a couple from NJ moves to NC, their legal union, marriage, contract, whatever, would need to be recognized by NC as legal and they would receive all benefit as they would have in NJ. So again, while the intent is to undo the wrongs of bad legislation, you still may have from the federal level a constitutional crisis, as the federal government is again trying to regulate what may be determined to be a state’s rights issue.

Unless the Supreme Court determines what specifically is unconstitutional with DOMA, ROMA will be susceptible to the same challenges. If they determine pieces of the legislation are unconstitutional, but the federal government did not over-reach with regards to state’s right, then ROMA can be a very effective move forward.

Through our relatively short history as a Constitutional Republic, America has had it’s ups and downs from a civil rights perspective. There has been rampant discrimination against multiple races, genders and orientations, some has been sanctioned officially and some has been tolerated as policy if not law. Each progressive move forward has not resulted in equality from the start, many can argue that Affirmative Action has caused a reverse-discrimination situation as it establishes requirements outside of merit based election. I would hope, considering the last 60 years of experience in the realm of civil rights, that as discrimination against same-sex couples is legislated into extinction, that we as Americans of all races, creeds, colors, religions and proclivities can finally acknowledge that as Americans, we can be different from each other, we do not have to like or even condone a particular lifestyle, but we are ALL Americans and each and everyone of us has the right to be happy as the next and no one should be exempt from the same benefits as another simply because they are not the same or hold the same beliefs.

My comrades and I have spent the last 10 years not only battling terrorism as a result on attacks on our country, but trying to spread the environment of equality through the world. Each and every in-road has been met with resistance and we have no right to dictate humanitarian policy within a sovereign country, especially if we cannot demonstrate the same level of human rights, civility and acceptance within our own borders. Being an American is different to each and every one of us, as an American soldier, part of how I see my role is to be an ambassador for how people should be treated and use our great country as an example of how to achieve that goal. It is hard to do when there is an explicit divide between the equal and not as equal.

Time for change America, a little free thought goes a long way. Decide for yourselves what is right and wrong.

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Thank you for this post. I found it very interesting along with some mind boggling instances. Sometimes getting into all the different ways people can view a law or not is tiresome for me, but I am trying to get better at it so I can be an effective organizational president. Thank you for your thoughts on the DOMA ruling.